State v. Hooper, ___ N.C. App. ___, 2021-NCCOA-500 (Sept. 21, 2021)

The defendant was indicted for assault by strangulation, assault on a female, and other offenses after an incident in a hotel where evidence at trial tended to show that the defendant had an altercation with the mother of his child that left her with visible injuries and the defendant with a gunshot wound.  Immediately before jury instructions were to be given, and after not requesting an instruction on self-defense or otherwise objecting to proposed instructions at a charge conference the preceding day, the defendant requested for the first time that an instruction on self-defense be given.  In denying the request, the trial court noted that the defendant did not give notice of the defense and that there was no evidence of the defendant’s thoughts or beliefs at the time of the altercation.  After the instructions were given, both parties informed the trial court that they had no objections to the instructions as given.  Based on these events, the court determined that any error in not giving a self-defense instruction was invited, and that even if an error occurred the defendant could not show prejudice because the evidence against him was overwhelming and uncontroverted. 

Judge Murphy dissented, stating the view that the defendant did not waive appellate review of the alleged error merely by failing to state an objection after the instructions were given because his request for the self-defense instruction constituted an objection.  Judge Murphy went on to explain that the evidence at trial was sufficient to entitle the defendant to a self-defense instruction, and that the error in not giving the instruction was prejudicial as it deprived the jury of the ability to decide the issue of whether the defendant’s participation in the altercation was lawful.  After determining that the trial court abused its discretion by precluding the instruction as a sanction for failing to provide notice of self-defense, presuming the trial court meant to do so, Judge Murphy stated that he would hold that the defendant was entitled to a new trial.